321 F.

3d 69

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,
v.
J.B. HUNT TRANSPORT, INC., Defendant-Appellee.
Docket No. 01-6084.

United States Court of Appeals, Second Circuit.

Argued: January 9, 2002.
Decided: February 5, 2003.

COPYRIGHT MATERIAL OMITTED Julie L. Gantz, Equal Opportunity

Employment Commission (Nicholas M. Inzeo, Acting Deputy General
Counsel, Philip B. Sklover, Associate General Counsel, Vincent J.
Blackwood, Assistant General Counsel, on brief), for Plaintiff-Appellant.
James H. Hanson, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN
(Laurie T. Baulig, Scopelitis, Garvin, Light & Hanson, Washington, DC,
Thomas J. Grooms, Bond Schoeneck & King, Syracuse, NY, on brief), for
Defendant-Appellee.
Before: JACOBS, F.I. PARKER, SOTOMAYOR, Circuit Judges.
F.I. PARKER, Circuit Judge.

J.B. Hunt Transport, Inc. chose not to employ over-the-road truck drivers who
used prescription medications with side effects that might impair driving
ability. The Equal Employment Opportunity Commission argued that under the
Americans with Disabilities Act, Hunt's decision violated the rights of job
applicants using those medications. We disagree.

I.
2

Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC")

appeals from the February 8, 2001 decision of the United States District Court
for the Northern District of New York (Norman A. Mordue, Judge) granting
defendant J.B. Hunt Transport Inc.'s ("Hunt"'s) motion for summary judgment

and denying plaintiff EEOC's cross-motion for summary judgment. The district
court found that the applicants in question had been denied over-the-road
driving positions with Hunt because of their use of medications with potentially
harmful side effects, and not as a result of an actual or perceived disability or a
record of disability as contemplated by the Americans with Disabilities Act of
1990, 42 U.S.C. 12101, et seq. ("ADA"). On appeal, the EEOC argues
exclusively that Hunt regarded the rejected applicants as disabled, i.e.,
substantially limited from a major life activity, as defined by 42 U.S.C.
12102(2)(C) because of their use of certain medications. Because we find that
Hunt did not regard the applicants as disabled as defined by the ADA, we
affirm the decision of the district court.
II.
3

J.B. Hunt Transportation, Inc. ("Hunt") is the nation's largest publicly held
motor carrier company. Hunt operates for-hire property transport services in the
forty-eight contiguous states, the District of Columbia, Canada, and Mexico. Its
fleet includes 8,000 tractors, and it employs approximately 12,000 individuals
to drive the trucks. Of these employees, approximately 10,000 are the over-theroad ("OTR") drivers whose positions are at issue in this case. These OTR
drivers operate vehicles weighing approximately 80,000 pounds over irregular
routes under particularly difficult work conditions, including sleep deprivation,
irregular work and rest cycles, inclement weather, long driving periods, long
layovers, irregular meal schedules, tight delivery schedules, en route delays,
night driving, accumulated fatigue, stress, and extended periods of loud noise
and vibrations. According to Hunt, the large vehicle size and extreme driving
conditions faced by its OTR drivers warrant heightened safety evaluations of
those OTR drivers.

Like other motor carriers, Hunt is subject to federal regulation under the
Department of Transportation's Federal Motor Carrier Safety Act Regulations
("FMCSAR"). 49 C.F.R. 301, et seq. (2001). These regulations establish
minimum qualifications for any person driving a commercial motor vehicle, as
well as minimum duties for motor carriers using OTR drivers. The regulations
specifically allow an operator to require and enforce "more stringent
requirements relating to safety of operation and employee safety and health", 49
C.F.R. 390.3(d), and require operators to restrict drivers from operating
vehicles "while the driver's ability or alertness is so impaired, or so likely to
become impaired, through fatigue, illness, or any other cause, as to make it
unsafe for him/her to begin or continue to operate the commercial motor
vehicle." Id. at 392.3 (2001). A motor carrier is required to ensure that drivers
do not operate unless they are in compliance with the DOT regulations. 49

C.F.R. 391.11, 392.3, 392.4(b)(2001).

A. The Drug Review List
5

Between September 1993 and May 1994, in an effort to comply with the
FMCSAR in its hiring processes, Hunt created a Drug Review List ("DRL") of
medications known to have side effects that might impair driving ability. The
list, thirty-seven pages in length and including over 836 medications, was
compiled by Hunt's Safety Department Director of Compliance, David
Whiteside ("Whiteside"), based entirely on notations in the 1993 edition of the
Physician's Desk Reference ("PDR"). Whiteside divided the DRL into six
columns labeled "name," "class," "comment," "restriction," "treats," and "1993
PDR page number." In the "restriction" column, Whiteside indicated the impact
a particular drug might have on an applicant's eligibility. Whiteside designated
five categories of restrictions: "Rule Out Side [E]ffects," "Not Permitted,"
"Unsafe [E]ffects," "Heart Condition," and "Disqualifying Condition."1 An
applicant whose medication had a "Rule Out Side Effects" notation was
required to obtain a release from the prescribing doctor certifying that the
applicant could safely drive a tractor trailer truck while using the medication.
An applicant taking a "Not Permitted," "Unsafe Effects," "Disqualifying
Condition," or "Heart Condition" medication could not drive for Hunt while
using the indicated medication.2 The notation "Unsafe Effects" indicated either
that the PDR cautioned users against operating heavy equipment or driving
automobiles while taking the drug (noted as "warning on driving" in the
comment column) or that the drug caused drowsiness, sedation, or a high
incidence of dizziness. A "Rule Out Side Effects" notation indicated that a
medication could cause side effects similar to, but less pervasive than, those
warranting an "Unsafe Effects" label. Finally, "Heart Condition" indicated that
the medication was generally used for heart problems that could disqualify
drivers under DOT regulations.
B. The Hunt Hiring Process

Upon receiving an application for a commercial driving position, Hunt

forwarded the application to its Corporate Driver Personnel Department in
Lowell, Arkansas for screening of motor vehicle, criminal, and prior
employment records and for a review of listed references. If an applicant
passed this first level of screening and received a conditional employment offer,
the applicant underwent medical screening, including questioning regarding the
applicant's use of prescription medication for the last five years. Hunt used
nonmedical personnel to conduct these screenings. If the applicant indicated
use of a prescription drug, the reviewing employee consulted Hunt's medical

guidelines3 and the DRL to determine the applicant's medical eligibility.

C. The EEOC Claim
7

EEOC claims that Hunt improperly rejected 546 applicants in violation of the
ADA on the basis of a "blanket" exclusionary policy. EEOC admits, however,
that Hunt hired several applicants who were using drugs prohibited under the
DRL in 1995, two applicants using drugs labeled "Disqualifying Condition"
and eleven using drugs labeled "Unsafe Effects," and in 1996 and 1997, one
applicant taking a "Disqualifying Condition" drug and thirteen using drugs with
"Unsafe Effects." Prior to commencing work, each of these new employees
provided Hunt with medical documentation from a treating physician or health
care provider certifying that he or she did not suffer from the potentially
problematic side effects and could operate a truck safely while taking the drug.

III.
8

EEOC filed its complaint in the United States District Court for the Northern
District of New York on October 24, 1997. Both sides moved for summary
judgment. EEOC alleged that Hunt violated the ADA by discriminating against
individuals with disabilities or "perceived" disabilities. Hunt alleged that the
DRL was a safety-related qualification standard addressing serious business
concerns. The district court granted summary judgment for Hunt and denied
EEOC's summary judgment motion based on (1) its conclusion that ADA
protections did not extend to the excluded driver-applicants because the
applicants were not, by virtue of their use of certain medications, disabled
within the meaning of the ADA, and (2) its finding that the EEOC had failed to
contradict Hunt's assertion that its use of the DRL as a safety measure was
reasonable within DOT guidelines. Equal Employment Opportunity Comm'n. v.
J.B. Hunt Transp., Inc., 128 F.Supp.2d 117, 135-36 (N.D.N.Y. 2001). On
appeal, EEOC abandoned its argument that the excluded applicants were
"disabled" under the ADA, claiming only that the district court erred by
granting summary judgment to Hunt when the evidence supported the
conclusion that Hunt regarded the applicants as disabled because of their use of
medications on the DRL.

IV.
9

We review a district court's grant of summary judgment de novo, construing the

evidence presented below in the light most favorable to the non-moving party.
Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 391 (2d Cir.2001). While this
Court may affirm on any ground with adequate support in the record, we may

not affirm summary judgment where any evidence in the record would support
a reasonable inference in favor of the opposing party. See McCarthy v. Am. Int'l
Group, Inc., 283 F.3d 121, 124 (2d Cir. 2002); VKK Corp. v. Nat'l Football
League, 244 F.3d 114, 119 (2d Cir.2001).
10

A. The Statutory Framework and the Definition of "Disability."

11

The ADA provides a deceptively simple definition of disability:

12

The term "disability" means, with respect to an individual

13

(A) a physical or mental impairment that substantially limits one or more of the
major life activities of such individual;

14

(B) a record of such an impairment; or

15

(C) being regarded as having such an impairment.

16

42 U.S.C. 12102(2)(1995). EEOC regulations further develop this definition,

explaining "physical or mental impairment" as:

17

(1) Any physiological disorder, or condition, cosmetic disfigurement, or

anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic
and lymphatic, skin, and endocrine; or

18

(2) Any mental or psychological disorder, such as mental retardation, organic

brain syndrome, emotional or mental illness, and specific learning disabilities.

19

29 C.F.R. 1630.2(h) (2001).

20

Although EEOC initially challenged Hunt's reliance on the DRL under all three
prongs of the statutory definition of "disability," on appeal, EEOC alleges only
that the rejected OTR driver applicants were "regarded as" disabled by Hunt
based on their use of certain medications, invoking the statutory definition of
disability under 12102(2)(C). As the Supreme Court explained in Sutton v.
United Air Lines, Inc., "[t]here are two apparent ways in which individuals may
fall within this [ 12102(2)(C)] statutory definition: (1) a covered entity
mistakenly believes that a person has a physical impairment that substantially

limits one or more major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substantially limits one or more
major life activities." 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450
(1999).
21

Evaluating the evidence before the district court, this Court agrees with the
court below that EEOC failed to put forth evidence sufficient to demonstrate
that the rejected applicants were "disabled" within the meaning of the ADA.
Specifically, EEOC failed to set forth evidence sufficient to establish that Hunt
perceived rejected applicants as substantially limited in their ability to perform
a major life activity.

22

B. The Evidence Is Insufficient To Support the Inference that Hunt Regarded

Applicants as Having a "Substantial Limitation" on a "Major Life Activity."

23

To qualify for ADA protections, a person's "impairment" must "substantially

limit" a "major life activit[y]." 42 U.S.C. 12102(2). Major life activities may
include "caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning," and, pertinent to this appeal, "working." 29
C.F.R. 1630.2(i). An activity is "substantially limited" when an individual
cannot perform the activity that an average person in the general population
could perform or faces significant restrictions in the "condition, manner, or
duration under which the individual can ... perform [the] activity." 29 C.F.R.
1630.2(j)(i)-(ii). The activity of "working" is further defined by the regulations
as follows:

24

With respect to the major life activity of working

25

(i) The term substantially limits means significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and
abilities. The inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.

26

29 C.F.R. 1630.2(j)(3)(i). Thus, unless Hunt perceived the applicants in

question as limited from a class of jobs or a broad range of jobs, the EEOC's
claim must fail.

27

1. Driving 40-Ton, 18-Wheel Trucks Over Long Distances for Extended

Periods is Neither a "Class of Job" nor a "Broad Range of Jobs" Within the
Meaning of the ADA.

28

Driving freight-carrying tractor-trailer trucks over long distances for extended

periods of time is neither a "class of jobs" nor a "broad range of jobs," as the
EEOC alleges, but rather a specific job with specific requirements. Such a
position requires specific abilities, especially the ability to stay alert over long
hours under difficult conditions. A Hunt OTR driver's alertness cannot flag. He
or she must be able to stay alert and withstand the mesmerizing affect of driving
an eighteen-wheel vehicle for hours at a stretch, sometimes at night, with
continuous vibration over long distances. Given these demanding requirements,
the fact that one may not be able to perform the specific job of a Hunt OTR
driver does not mean that one could not successfully engage in other types of
truck driving, let alone in other kinds of safety-sensitive work.

29

In Sutton, the Supreme Court considered the claims of pilots who had been
denied positions as "global pilots" with United Airlines. The Supreme Court
held that the position of "global pilot" was "a single job" and, therefore, was
not sufficiently broad to satisfy the "major life activity requirement". Sutton,
527 U.S. at 493, 119 S.Ct. 2139. The Court reasoned that "there are a number
of other positions utilizing petitioners' skills, such as regional pilot and pilot
instructor to name a few." Id.

30

Like the limitation that United Airlines placed on global airline pilots in Sutton,
the limitation that Hunt placed on applicants for the position of OTR driver was
a limitation on a particular job within a larger group of jobs, and not a
substantial limitation on working. See Baulos v. Roadway Express, Inc., 139
F.3d 1147, 1154 (7th Cir.1998) (driving sleeper trucks is a specific job within
the broader class of truck driving jobs). Therefore, the applicants' perceived
unsuitability for the position of OTR driver cannot be characterized as a
perceived inability to perform a broad range or a class of jobs. This is true even
assuming that truck-driving in general is a sufficiently broad range or class of
jobs to constitute a "major life activity", an issue we do not need to reach. As
the dissent readily acknowledges, persons licensed to drive the types of vehicles
driven by Hunt OTR drivers are also qualified to drive "various types of small
and large trucks, including tractor-trailers, moving trucks, and cargo vans."
Dissent page 80.

31

Accordingly, to show that Hunt perceived applicants rejected under the DRL as
substantially limited in a major life activity, the EEOC must show that Hunt
viewed such applicants as limited from a broader range or class of jobs than
merely OTR positions at Hunt.

32

2. The Evidence Is Not Sufficient To Support a Reasonable Inference that Hunt

Regarded Applicants Rejected Under the "Not Permitted" and "Unsafe Effects"

Categories as Substantially Limited in a Broad Range or Class of Jobs.

33

The EEOC argues that Hunt regarded applicants who took particular
medications as incapable of driving trucks, which according to the EEOC
constitutes either a "class of jobs" or a "broad range of jobs." The record,
however, only shows that Hunt saw the applicants as unfit to perform a job for
which they were seeking applicants: long-distance, freight-carrying, tractortrailer driving. The Supreme Court has clearly stated that "[t]he inability to
perform a single, particular job," however, "does not constitute a substantial
limitation in the major life activity of working." Sutton v. United Air Lines, Inc.,
527 U.S. 471, 493, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Here, Hunt
dismissed the applicants as unable to meet Hunt's own safety requirements
requirements above and beyond the DOT's industry-wide standards and unique
from the requirements of other trucking companies. See Compl. 8c; Def.'s
Statement of Material Facts at 7; see also Adair Dep. at 85-86; J.B. Hunt
Transp., Inc., 128 F.Supp.2d at 129 n. 17 (noting drivers were employed by
other trucking companies while taking same medications).

34

The evidence suggests that Hunt found the applicants unsuited for longdistance driving of Hunt's 40-ton trucks on irregular, stressful schedules, but
does not indicate that Hunt perceived the applicants as more broadly limited.
The fact that Hunt did not have another, less demanding driving position to
offer the candidates does not indicate that Hunt perceived the candidates as
being unqualified for any driving position at all. Giordano v. City of New York,
274 F.3d 740, 748-50 (2d Cir.2001) (finding inability of the New York Police
Department to offer light duty, non-patrol position to officer taking anticoagulation medication did not demonstrate that officer was substantially
limited in working where other security and law enforcement jobs in the area
had such positions); see also Baulos v. Roadway Express Inc., 139 F.3d 1147,
1154 (2d Cir.1998) (concluding that truck drivers unable to operate sleeper
trucks did not show that they were regarded as disabled where employer did not
offer them less demanding, non-overnight positions that were taken by drivers
with more seniority).

35

EEOC references a few comments from Hunt's evaluators to candidates

suggesting that certain candidates were not suited to any form of professional
driving. These comments, made by people other than the ultimate hiring
authorities, simply are not sufficient to indicate that Hunt thought the applicants
were more broadly limited given the heightened nature of Hunt's standards and
the fact that Hunt did hire some applicants on DRL medications. Although a
few evaluators' comments could be more broadly interpreted, there is no
evidence that Hunt's reviewers, relying on Hunt's own DRL and drug lists to

make a judgment on qualification for a position at Hunt, intended to make an

evaluation beyond Hunt's specific guidelines. Nor is there sufficient evidence to
support a finding that Hunt viewed the driving limitation as extending beyond
Hunt. Furthermore, as the Supreme Court has clearly stated, "[i]t is not enough
to say that if the physical criteria of a single employer were imputed to all
similar employers one would be regarded as substantially limited in the major
life activity of working only as a result of this imputation." Sutton, 527 U.S. at
493, 119 S.Ct. 2139.
36

In short, EEOC demonstrated only that Hunt refused to hire certain applicants
according to its own hiring criteria; however, a finding of perceived disability
may not rest merely on a single employer's failure to hire a candidate. Baulos,
139 F.3d at 1154 ("Courts have uniformly held that an employer does not
necessarily regard an employee as handicapped simply by finding the employee
to be incapable of satisfying the singular demands of a particular job." (internal
citation omitted)).

37

Thus, we affirm the district court's grant of summary judgment in favor of Hunt
as to the applicants rejected under at least the "Not Permitted" and "Unsafe
Effects" categories because EEOC has failed to demonstrate that Hunt
mistakenly perceived that the rejected applicants' had impairments that
substantially limited a "major life activity." Accordingly, EEOC has failed to
show that the applicants were "disabled" within the meaning of the ADA. In so
holding, we emphasize that this Court will not presume a mistaken assumption
of disability based only on an employer's decision not to hire certain candidates.

38

3. The Evidence Is Also Not Sufficient To Support a Reasonable Inference that

Hunt Regarded Applicants Rejected Under the "Disqualifying Condition" and
"Heart Condition" Categories as Substantially Limited in a Broad Range or
Class of Jobs.

39

As noted above, two of the categories in the DRL appear, at least superficially,
to refer to the condition causing the reliance on a DRL drug, not merely the
applicants' use of a DRL medication.4 Although the evidence suggests that
these applicants were, like those in the other categories, often told that they
were disqualified on the basis of the drug they were using rather than on the
basis of the condition supporting their use of the drug, we briefly consider
whether applicants using drugs from these two categories warrant a different
legal conclusion. We conclude that they do not.

40

Individuals suffering from the conditions treated with the "Heart Condition" or

"Disqualifying Condition" drugs are potentially explicitly barred from truck

driving by 49 C.F.R. 391.41.5 Hunt therefore potentially regarded applicants
using these drugs as substantially limited not just from driving Hunt vehicles
according to the rules of the DRL and other company regulations, but as
prevented from driving legally for any commercial trucking company. As with
the other categories in the DRL, however, the restrictions on the medications
labeled "Disqualifying Condition" or "Heart Condition" were placed on
applicants taking the drug, not on applicants with the underlying condition
itself. Even though in some cases, the company, under 49 C.F.R. 391.41,
could have created a policy excluding the applicant on the basis of the
underlying condition, the basis for the exclusion from employment was the use
of a listed drug, not any potential "disability" created by the treated disease.6
41

We conclude, therefore, that any claims arising under the "Heart Condition"
and "Disqualifying Condition" categories are not distinguishable from the
claims under the "Not Permitted" and "Unsafe Effects" categories and so they
must also fail.

V.
42

Although Hunt admittedly rejected the applicants for its OTR driving positions
because of their use of certain prescription medications, the EEOC cannot
succeed in its ADA claim on behalf the rejected applicants. The record only
shows that Hunt regarded the applicants in question as ineligible for a specific
position within Hunt, not that Hunt regarded them as "disabled" within the
meaning of the ADA. The applicants, through the EEOC, therefore do not have
a valid ADA claim.

43

For the reasons set forth above, this Court affirms the district court's grant of
summary judgment to defendant Hunt and its denial of the cross-motion by
plaintiff EEOC.

44

The judgment of the district court is AFFIRMED.

Notes:
1

The Court will use the corrected labels "Rule Out Side Effects" for "Rule Out
Side Affects" and "Unsafe Effects" for "Unsafe Affects" throughout the
opinion

The district court found that Whiteside mistakenly believed that the DOT
prohibited drivers from using any Schedule II-V medications, rather than only
Schedule I medications, and that he therefore included all of these medications
in the "Not Permitted" categoryEqual Employment Opportunity Comm'n v. J.B.
Hunt Transp., Inc., 128 F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see 49 C.F.R.
391.42(b)(12)(i) (prohibiting use of Schedule I drugs, amphetamines,
narcotics, and other habit-forming drugs); 49 C.F.R. 392.2 (same).

As the district court found, Hunt maintained a restrictive policy on the use of
drugs for psychological conditions separate from the DRL. An applicant was
not eligible to drive for Hunt unless he or she had been off such drugs for at
least thirty days before commencing work. Hunt Medical Guidelines, April 11,
1996

As noted in the discussion of the pertinent facts, the DRL contained five
categories of drugs: "Rule out Side Effects," "Not Permitted," "Unsafe Effects,"
"Heart Condition," and "Disqualifying Condition." The EEOC does not
represent in this appeal any applicants rejected under the "Rule Out Side
Effects" category, thus removing that category from our considerationJ.B. Hunt
Transp., Inc., 128 F.Supp.2d at 122, n. 7.

Review of the DRL reveals that the label "Disqualifying Condition" attached to
drugs treating Parkinson's Disease, serious arrythmia, alcoholism, epilepsy,
seizure, migraines, dementia, depression, schizophrenia, diabetes, severe
arthritis, severe hypertension, opiate addiction, subarachnoid hemorrhage,
artery occlusion, and severe headache, while the label "Heart Condition"
attached to medicines treating heart failure, thrombosis, edema, congestive
heart failure, ischemia, and ventric arrythmia. 49 C.F.R. 391.41 appears to
exclude persons with all of these conditions from driving a commercial vehicle
where those conditions are likely to interfere with their ability to safely drive a
commercial vehicle. 49 C.F.R. 391.41(b)(3) (diabetes), 391.41(b)(4)
("myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or
any other cardiovascular disease of a variety known to be accompanied by
syncope, dyspnea, collapse or congestive heart failure"), 391.41(b)(6) (high
blood pressure), 391.41(b)(7) ("rheumatic, arthritic, orthopedic, muscular,
neuromuscular, or vascular disease"), 391.41(b)(8) (epilepsy or "any other
condition which is likely to cause loss of consciousness"), 391.41(b)(9)
("mental, nervous, organic, or functional disease or psychiatric disorder"),
391.41(b)(12)(i) (controlled substances), 391.41(b)(13) (alcoholism).
"Migranes" or "severe headaches," as "vascular headache[s]," DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1042 (28th ed. 1994), potentially
fall within 391.41(b)(7)'s restriction on vascular disease

EEOC alleged that Hunt misinterpreted a DOT report cautioning about the
effects of drugs used to treat heart conditions, claiming that the report merely
required individual assessment of each patient. The DOT subsequently issued a
report clarifying that the use of Coumadin, a anticoagulator previously
questioned, was not automatically disqualifying. J.B. Hunt Transp., Inc., 128
F.Supp.2d at 120 n. 3 (describing reports). According to the DRL, however,
Coumadin treats thrombosis, a condition specifically prohibited by the current
regulations. See 49 C.F.R. 391.41(b)(4).
6

For example, Amandtadine Hydrochloride, a drug to which the "Disqualifying

Condition" label attaches treats both Parkinson's Disease and the flu. While an
applicant taking the drug for Parkinson's might be disabled on the basis of the
disease within the meaning of the ADA, an applicant using the drug for the flu
would not likely so qualify. Hunt, however, would have excluded either
applicant because of the drug usage. Furthermore, some "Disqualifying
Condition" drugs treat the same underlying diseases as drugs given other labels.
For example Zoloft, a drug used for treatment of, inter alia, depression, is listed
as "Unsafe Effects," while Prozac, also for depression, is listed as
"Disqualifying Condition." This further supports the idea that the drug, not the
condition itself, was the true basis of Hunt's hiring ban

45

SOTOMAYOR, Circuit Judge, dissenting.

46

This case is quite straightforward. Based upon a list of drugs and their potential
side effects compiled by David Whiteside, a Hunt employee with no medical
training, and a Medical Guidelines policy developed by Michael Gray, a former
Red Lobster cashier with no medical training who was, nevertheless, Hunt's
Medical Advisor, Hunt determined that certain applicants were unfit to be truck
drivers. The EEOC has provided substantial evidence that Hunt believed that
these individuals were unfit to drive a truck, or, for that matter, to drive at all
and were incapable of performing the broad class of jobs that fall under the
classification "truck driving." Based upon this showing, I would vacate the
district court's grant of summary judgment and hold that there is a genuine
dispute of material fact with respect to whether the EEOC has established a
prima facie case of disability discrimination. I therefore respectfully dissent.

47

I agree with the majority that the issue in this appeal is whether the applicants
were denied truck driving positions at Hunt because of their perceived
disability within the meaning of the ADA. Ignoring significant evidence that
Hunt perceived the applicants as more broadly limited, however, the majority
holds that the EEOC has only provided evidence that Hunt perceived the
rejected applicants as "ineligible for a specific position within Hunt." Ante at

78. In doing so, the majority reasons that long haul trucking is not a sufficiently
broad class of jobs such that a substantial limitation on an individual's ability to
be a long haul trucker would imply that the individual was disabled within the
meaning of the ADA. See ante at 75-76. The majority asserts that a limitation
on an individual's ability to be a long haul truck driver does not substantially
limit his or her ability to engage in the major life activity of working, as many
other truck driving jobs are available for these individuals. See ante at 75-76.
The majority does not, however, hold that truck driving in general is such a
specific class of jobs that a substantial limitation on truck driving would fail to
imply a disability; its holding relies solely upon an inappropriately narrow view
that Hunt perceived the applicants as limited only in their ability to work as
long haul truckers for Hunt.
48

Contrary to the majority's assertion, the EEOC has produced significant

evidence that Hunt regarded the applicants as substantially limited in the major
life activity of working as truck drivers in general. An employer perceives an
employee to be substantially limited in his or her ability to work if it believes
the employee is:

49

significantly restricted in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having
comparable training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major life
activity of working.

50

29 C.F.R. 1630.2(j)(3)(i); see also Bartlett v. N.Y. State Bd. of Law Exam'rs,
226 F.3d 69, 82-83 (2d Cir.2000). Factors that may be considered under this
standard include the geographical area to which an individual has reasonable
access; the number and types of jobs utilizing similar training, knowledge,
skills or abilities as the job from which the applicant has been disqualified; and
the number and types of jobs not utilizing similar training, knowledge, skills or
abilities from which the applicant will also be disqualified. 29 C.F.R.
1630.2(j)(3)(ii).

51

If other jobs utilizing an individual's skills are available, that person is not
substantially limited in a class of jobs, even if this alternate employment would
not allow the individual to showcase his or her special talents. Sutton v. United
Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In
Sutton, the Supreme Court determined that plaintiffs applying for positions as
global airline pilots could use their particular skills to obtain other piloting
positions from which they were not disqualified, so these plaintiffs were not
regarded as being shut out from an entire occupational class. Id. at 492-93, 119

S.Ct. 2139. In applying this rubric, the Second Circuit has found that practicing
law is a broad occupational class, see Bartlett, 226 F.3d at 84, but that working
as a policeman is a specific position within the class of investigative or security
jobs, see Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir.2001).
52

The EEOC has proffered evidence that the members of the plaintiff class have
undergone specialized driver training, earned commercial drivers' licenses,
passed road tests and received medical certifications pursuant to DOT
regulations. The set of jobs that call for these qualifications includes driving
various types of small and large trucks, including tractor-trailers, moving
trucks, and cargo vans. See Office of Management & Budget, Standard
Occupational Classification Manual 220 (2000), available at http://
www.bls.gov/soc/soc_v3d0.htm. The Department of Labor classifies truck
driving as a separate occupation within the overall category of "Transportation
and Material Moving Occupations," as does the Office of Management and
Budget. Id. The Department of Labor estimated that in 2000 there were more
than 3.3 million jobs that came under the heading of "Truckdriver and
Driver/Sales Workers." 1 Bureau of Labor Statistics, Occupational Outlook
Handbook 577 (2002-03), available at
http://www.bls.gov/oco/pdf/ocos246.pdf. This evidence demonstrates that truck
driving is a general field of employment rather than a specific position. Accord
Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir.1998) (holding
that driving a sleeper car is a specific job within the class of truck drivers); Best
v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (holding that truck driving is
a class of jobs).

53

The majority does not reach the question whether truck driving is a class of
jobs. Instead, the majority argues that Hunt only dismissed the applicants
because "Hunt found the applicants unsuited for long-distance driving of Hunt's
40-ton trucks on irregular, stressful schedules." Ante at 76. Such hyperbole is
inapposite. Whether long haul trucking is, in fact, different from other types of
truck driving is not the central issue in this appeal; Hunt's perception of the
applicants as substantially limited in their ability to drive trucks, without further
limitation to long haul truck driving, is the central issue.

54

Beyond this basic misconception, the majority also misrepresents the record by
asserting that the evidence "does not indicate that Hunt perceived the applicants
as more broadly limited." Ante at 77. To the contrary, the EEOC provided
significant evidence that Hunt believed that the applicants were unfit to drive
trucks. Numerous drugs were listed on the DRL as "Not Permitted,"2 reflecting
a belief that the applicant was prohibited by DOT regulations from driving a
commercial vehicle while taking that particular medication. Dr. Cooper, Hunt's

physician consultant, testified with respect to one applicant that he did not feel
it was "in this patient's best interest to pursue this profession." Interview
records show that the company believed another applicant "would most likely
have difficulty functioning in the lifestyle of a trucker." Similarly, Dr. Cooper
indicated with regard to another applicant that her "problems with sleep and
concentration under stress are not very compatible with the lifestyle expected of
a driver." Applicant Joseph Lisa was told by a Hunt employee that he would
"never drive for anybody," and numerous other applicants were told that the
medications they were taking made it unsafe for them to drive a truck, or drive
in general. See, e.g., Curtin Decl., Exh. 13 (reviewer told applicant "that she
could not be on [the medication] and drive [because] it can cause unsafe affect
[sic]"); id. (reviewer told applicant "that he could not drive[] while on this
medication"); id. (reviewer told applicant "that she cannot be on [the
medication] and drive"); Curtin Decl., Exh. 20 (drug is "not permitted for
driving"); id. ("[b]oth drugs are not approved for driving"); id. (reviewer
"informed applicant that he cannot take [the medication] and drive"); Curtin
Decl., Exhs. 23, 25 (reviewer "informed appl[icant] that he could not take the
med[ication] on [the] truck"); Curtin Decl., Adair Depo. (representative told
applicant "it's illegal to drive a truck with that [medication]"); Curtin Decl.,
Manning Depo. (representative told applicant "it was illegal for a driver to
drive while on this medication"). The EEOC has provided sufficient evidence
to create a factual issue whether Hunt perceived the applicants as broadly
limited in their ability to work as a truck driver.
55

The majority explains this evidence by stating:

56

Although a few evaluators' comments could be more broadly interpreted, there

is no evidence that Hunt's reviewers, relying on Hunt's own DRL and drug lists
to make a judgment on qualification for a position at Hunt, intended to make an
evaluation beyond Hunt's specific guidelines.

57

Ante at 76-77. In reviewing a grant of summary judgment, however, we do not

refuse to credit a broad, but reasonable, interpretation of the evidence.
Giordano, 274 F.3d at 749-50. Even if this were the standard, Hunt's reviewers
stated that one applicant would "never drive for anybody," and made similar
statements about many other applicants; it is difficult to imagine a clearer
statement that the reviewers intended to say that the applicants were, in fact,
substantially limited in their ability to work as a truck driver for any company.

58

The majority asserts that because Hunt's reviewers were not the ultimate
decision makers, the comments "simply are not sufficient to indicate that Hunt
thought the applicants were more broadly limited." Ante at 76-77. Again, this is

a matter for the factfinder to decide. Hunt's own employees stated on several
occasions that applicants were unfit to drive; a factfinder reasonably could
impute these statements to Hunt, even if these employees were not the ultimate
decision makers. Hunt proffers no evidence that these unidentified "ultimate
hiring authorities" did not share the reviewers' perceptions or rely upon their
statements about the applicants' limitations. Indeed, Hunt does not argue
otherwise; it simply argues that its employees' statements implicitly refer only
to jobs at Hunt. A factfinder is certainly allowed to determine whether the
statement that an applicant would "never drive for anybody" implicitly refers
only to jobs at Hunt; it is not, however, this Court's job to do so. In reviewing
whether summary judgment is appropriate, this Court does not make factual
determinations or refuse to credit legitimate inferences based upon the evidence
presented, but views the evidence in the light most favorable to the nonmoving
party. See Giordano, 274 F.3d at 746.
59

Hunt also argues that the statements of Dr. Cooper should not be imputed to it.
The EEOC provides significant evidence that Hunt relied on Dr. Cooper's
advice, including, for example, a reviewer's statement that the applicant was
"disqualified per Dr. Cooper." This suffices to provide a direct link between Dr.
Cooper's opinions regarding applicants and Hunt's view of the applicants as
disabled.

60

Finally, the majority's argument that Hunt's policy should not be imputed to
other companies in determining whether the applicants were perceived as
disabled is immaterial. Contrary to the majority's assertion, this is not a case in
which the potential imputation of Hunt's policy to other companies would result
in the applicants being regarded as "substantially limited in the major life
activity of working only as a result of this imputation." Sutton, 527 U.S. at 493,
119 S.Ct. 2139. It is Hunt's explicit statement that it believed applicants to be
unfit to drive a truck that supports Hunt's perception of these individuals as
substantially limited in their ability to drive a truck; no potential imputation is
required. Thus, the EEOC has provided sufficient evidence that a factfinder
could reasonably conclude that Hunt regarded the rejected applicants as
substantially limited in the major life activity of working, because Hunt
regarded them as unfit to be truck drivers.

CONCLUSION
61

Because I find ample support in the record for the assertion that Hunt regarded
the applicants as d substantially limited in the major life activity of working,
and thus, the applicants were disabled within the meaning of the ADA, I
respectfully dissent.

Notes:
1

Driver/Sales Workers drive trucks and work as sales agents for the goods they
haul; both of these aspects are integral to their jobsSee Occupational Outlook
Handbook 576-77 (2002-03).

The majority discusses the categories "Not Permitted" and "Unsafe Effects"
separately from the two condition-based categories, "Disqualifying Condition"
and "Heart Condition." Ultimately, the majority finds no legal distinction
between the "condition" categories and the othersSee ante at 78.
I agree that all four categories of medications on the DRL at issue here should
be treated identically. I disagree, however, with the majority's statement that
"the basis for the exclusion from employment was the use of a listed drug, not
any potential `disability' created by the treated disease." Ante at 77-78. The
EEOC has produced significant evidence that demonstrates the link between
the drug categories and potential underlying conditions. For example, one of
Hunt's interviewers noted that the "applicant did not indicate the reason he is
taking [the medication]. [N]eed to verify why he is on this medication." Similar
comments were made by reviewers with respect to applicants taking
medications in each of Hunt's categories. See, e.g., Curtin Decl., Exh. 18
(applicant needs to provide "headach [sic] release... [and a] statement that she is
not taking [the medication] for depression") ("Not Permitted" category); id.
("Sent to Brenda for review on cardiovasular [sic] condition") ("Not Permitted"
category); Curtin Decl., Exh. 20 ("the diagnosis and severity of her condition
for which she takes the medication is considered disqualifying") ("Unsafe
Effects" category); id. (applicant "will need to complete his treatments ... and
send in all records when his condition is resolved") ("Unsafe Effects"
category); Curtin Decl., Exhs. 23, 25 (applicant needs to "provide a statment
[sic] that ... his condition is fine w/out, the meds") ("Disqualifying Condition"
or "Heart Condition" category); id. (Hunt "need[ed] all records on [applicant's]
condition") ("Disqualifying Condition" or "Heart Condition" category). In
addition, Hunt's Medical Guidelines relating to mental and psychological
conditions required that in order to qualify for a job, an applicant taking
medication for depression must remain off the medication for thirty days and
submit a letter from a doctor stating that he or she no longer suffers from the
underlying condition. Contrary to the majority's assertion, this evidence
provides a direct causal link between the applicants' underlying conditions and
Hunt's perception of the applicants as substantially limited in their ability to
work as truck drivers.

To make a further distinction that it ultimately finds insignificant, the majority

asserts that "[i]ndividuals suffering from the conditions treated with the `Heart
Condition' or `Disqualifying Condition' drugs are potentially explicitly barred
from truck driving by 49 C.F.R. 391.41." Ante at 76-77 & n. 5. Many of the
conditions listed in this regulation only disqualify an individual if the condition
is "likely to interfere with his/her ability to control and drive a commercial
motor vehicle safely," 49 C.F.R. 391.41(b)(5), or otherwise suggest that an
individualized determination of potential safety concerns is required. See id.
391.41(b)(6)-(12). In relying on these regulations to support Hunt's policy, the
majority ignores the crucial difference between individualized determinations
of driver safety and Hunt's explicit policy to create a per se bar from truck
driving with respect to these individuals. Hunt's policy simply assumes, without
justification, that these individuals are unfit to drive trucks.